United States v. Dora Cantu Chapa , 394 F. App'x 53 ( 2010 )

Case: 09-40217 Document: 00511218577 Page: 1 Date Filed: 08/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 30, 2010
No. 09-40217
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
DORA OLGA CANTU CHAPA,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-1591-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Dora Olga Cantu Chapa appealed her guilty plea conviction for
transporting an undocumented alien for private financial gain by means of a
motor vehicle, in violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2. This court
affirmed the conviction, ruling in part that Cantu Chapa’s claim that ineffective
assistance of counsel rendered her guilty plea involuntary was foreclosed by our
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-40217 Document: 00511218577 Page: 2 Date Filed: 08/30/2010
No. 09-40217
precedent. The Supreme Court vacated the decision in this case and remanded
to this court for further consideration in light of Padilla v. Kentucky.1
Cantu Chapa asserts that her guilty plea was involuntary since her
counsel rendered ineffective assistance. She argues that her attorney was
ineffective because he failed to inform her that a conviction would almost
certainly result in deportation. Cantu Chapa raises this argument for the first
time on appeal.
Cantu Chapa’s ineffective assistance claim is not properly before us. We
have explained that an ineffective assistance of counsel claim “is not reviewable
on direct appeal because it has not been addressed by the district court, and the
record has not been fully developed.”2 While the Padilla holding shows that
Cantu Chapa’s claim may satisfy the constitutional deficiency prong of a
Strickland v. Washington3 ineffective assistance of counsel analysis, we cannot
fully address the claim here, since the record is not sufficiently developed so as
to consider the prejudice prong of the Strickland analysis. We therefore decline
to consider this claim without prejudice to Cantu Chapa’s ability to raise it in a
§ 2255 motion.
Cantu Chapa also contends that the magistrate judge and district court
committed reversible error by failing to advise her of (1) her right to be
represented by counsel, appointed if necessary, at trial and every other stage of
1
Chapa v. United States, — S.Ct. —, 2010 WL 1130167, at *1 (2010) (Mem.) (citing
Padilla v. Kentucky, 130 S.Ct. 1473 (2010)).
2
United States v. Sevick, 234 F.3d 248, 251 (5th Cir. 2000); see also United States v.
London, 568 F.3d 553, 562 (5th Cir. 2009) (“The general rule in this circuit is that a claim of
ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not
been before the district court since no opportunity existed to develop the record on the merits
of the claim.”).
3
466 U.S. 668 (1984).
2
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No. 09-40217
the proceedings,4 and (2) her right to be protected from compelled self-
incrimination.5 Plain error review applies to this issue.6 Cantu Chapa has not
shown, as required by United States v. Dominguez Benitez,7 that these errors
affected her substantial rights.
* * *
The judgment of the district court is AFFIRMED.
4
See FED . R. CRIM . P. 11(b)(1)(D).
5
See FED . R. CRIM . P. 11(b)(1)(E).
6
See United States v. Vonn, 535 U.S. 55, 59 (2002).
7
542 U.S. 74, 83 (2004).
3